Stadurn Pty Limited v Blacktown City Council

Land and Environment Court (NSW)|2004-07-02|Before: Pain J, Mr J, Ms J

The Applicant's argument that the proposed development is relatively insignificant in the overall development of the RHRC ignores the important consideration of integrity and consistency in policy-making. Brennan J in Re Drake v Minister for Immigration and Ethnic Affairs (No.2)(1979) 2 ALD 634 at 640 (and cited by Lloyd J in Goldin v Minister for Transport (2002) 121 LGERA 101 at 110) relevantly states: There are powerful considerations in favour of a Minister adopting a guiding policy. It can serve to focus attention on the purpose which the exercise of the discretion is calculated to achieve, and thereby to assist the Minister and others to see more clearly, in each case, the desirability of exercising the power in one way or another. Decision-making is facilitated by the guidance given by an adopted policy, and the integrity of decision-making in particular cases is the better assured if decisions can be tested against such a policy. By diminishing the importance of individual predilection, an adopted policy can diminish inconsistencies which might otherwise appeared in a series of decisions, and enhance the sense of satisfaction with the fairness and continuity of the administrator process.

Informed decisions on the allocation of public funds is clearly in the public interest as it ensures that these funds are properly used. The facilitation of positive investment decisions by private investors is also in the public interest as such investment is essential to ensure the early establishment and ongoing success of the RHRC. These decisions are likely to be made on the basis of adopted planning policies which provide certainty and consistency. This is succinctly put by Mr Brockhoff where he states that the loss of the bulky goods component would "impact on the capacity of the Centre to provide the activity, vitality and viability needed to ensure the adequate provision of community facilities and return on transport infrastructure investment for this regional centre".

Application of the Policy Package 37. Section 79C(1)(e) the EPA Act requires consideration be given to "the public interest". In addressing the public interest the Court may take into consideration the documents within the Integrated Land Use and Transport Policy Package as referred to in Draft SEPP 66 if it considers these to be relevant. This applies even if draft SEPP 66 is not yet in force. Clause 9 of draft SEPP 66 requires the consent authority to consider a number of matters before granting development consent. Clause 9(b) requires consideration to be given to "whether the development is consistent with the policy on location of specific land uses and the general policies in the Integrated Land Use and Transport Policy Package…".

Cowdroy J held in Terrace Tower Holdings Pty Ltd v Sutherland Shire Council (No 2) [2002] NSWLEC 150 at [29] that: … the fundamental planning principles contained within Draft SEPP 66, which emerge out of the Land Use and Transport Policy are matters which, in the public interest, are factors which can be taken into consideration.
Cowdroy J did not accept the submission that Draft SEPP 66 should not be accorded any weight because of the fact that, even if Draft SEPP 66 were to be gazetted, it would not have applied due to its transitional provisions. Cowdroy J's approach was upheld by the Court of Appeal in Terrace Tower Holdings Pty Ltd v Sutherland Shire Council (2003) NSWCA 289, at par 80, 81.

The community benefits of integrating land use planning with transport and travel patterns are explained in detail in "Integrating Land Use and Transport - Overview". I adopt the approach followed by Cowdroy J in Terrace Tower Holdings and consider that the policies contained in the Policy Package of encouraging the consideration of both transport and land use are sound and should be supported in this instance.

"The Right Place for Business and Services - Planning Policy" expressly states (at p 6) that the bulky goods outlets should be located in centres, unless it is unrealistic to do so. If located outside of the centres, the policy states that they should be located in one or two regional clusters, which should themselves indirectly support major centres. In my view, the proposal does not satisfy these requirements for the reasons set out below.
Firstly, there was no evidence to indicate that it was unrealistic to locate bulky goods within the RHRC. In fact, an area of similar size to that proposed in this application is planned for the RHRC. It is clearly realistic and appropriate that bulky goods retailing be part of the RHRC rather than creating another separate area to accommodate this use. For this reason it follows that the issues outlined in "The Right Place for Business and Services - Planning Policy" for establishing a new cluster for bulky goods retailing need not be considered.

Secondly, I do not accept the Applicant's evidence that the proposed development could be seen to be indirectly supporting the RHRC. I have ultimately given little weight to Mr Georges' argument that the subject site was zoned with the express intent of providing some support for the RHRC. While the subject site could be said to be in close proximity to the RHRC, based on the Structure Plan in SREP 19, the strength of that argument has diminished with the further detailed planning of the RHRC. I note that the objectives for the Zone 3(b) came into force with amendments made to the Blacktown LEP in 1991; this being after the coming into effect of SREP 19 but before any meaningful planning of the RHRC.

The Applicant further relies on documentation from Council officers that refers to the zoning of the subject site as supporting "the development of the nearby Mungerie Park Sub Regional Centre and in recognition of its current use" (Exhibit 8, Pt 2, p 17). In my view, these comments provide little support for the Applicant's argument. The 3(b) zone provides for a wide range of permissible uses. It is possible that one, or a number of, these permissible uses could support the RHRC without impacting on the early establishment of the RHRC. However, for the reasons set out below, I have found that the proposed development will so impact on the early establishment of the RHRC.

Thirdly, while the objectives of the 3(b) zone seek to support the general retail development of land within Zone 3(a), this must be a reference to Zone 3(a) land within the Blacktown local government area.The RHRC is located in a separate local government area.

I agree with the comments of Mr Brockhoff when he describes the underlying rationale for the Policy Package as being to restrict dispersed and isolated locations for certain activities, specifically large retail outlet locations, which cannot be accommodated without significant community and environmental costs. These costs may include displacement of activities from the RHRC and the reduced viability of the RHRC.

Other planning issues 47. The issue raised by Mr George on behalf of the Applicant as to the extent to which it is reasonable to intervene in the operation of the market is the subject of a fundamental difference between the parties. Put simply, the Applicant argues that the public interest can be adequately addressed through an open unconstrained competitive market whereas the Council and the Minister maintain that the public interest is best served through a strategic and planned approach to the provision of retail facilities for the area. The Applicant relied on Fabcot Pty Ltd v Hawkesbury Shire Council (1997) 93 LGERA 373 to argue that while s 79C(1)(b) of the EP&A Act requires consideration be given to "the economic impacts in the locality", this it does not mean that the Court should be concerned with the mere threat of economic competition between competing businesses. It was submitted by the Applicant that the State government, in its role as a landowner and joint venture partner in the development of the RHRC, as opposed to its role as regulator, could be seen as protecting its interest in the subject site. While I accept that the potential exists for such conflict, there was no evidence to suggest that this was the case in relation to the intervention by the Minister in these proceedings.

The LEP does not apply to the RHRC because it is outside the Blacktown local government area. Any impact on the RHRC must therefore be assessed from the regional planning documents addressed by Mr Brockhoff and, where the potential impacts of the proposed development on the RHRC are not otherwise covered by the regional instruments, the general town planning principles concerning neighbouring areas. Having considered the range of planning instruments that apply to the subject site and the RHRC, I can comfortably conclude that the broader public interest is best served by the refusal of the development application. For completeness I will briefly deal with the other issues raised.

6.2 The economic implications 49. There was conflicting evidence about the economic impact of the proposed development on the RHRC.

6.2.1 The Respondent's evidence 50. Mr Martin Hill, a land economist and valuer, provided evidence on the economic implications of the proposed development on the RHRC for the Council. Mr Hill maintains that the approval of the proposed application would delay the point at which the homemaker centre in the RHRC will become economically viable by some six to eight years. Mr Hill estimates that the future demand for bulky goods will be such that it will be served by around 180,000 sq m of bulky goods retailing by 2006 while the supply of bulky goods in 2006 will total around 214,000 sq m therefore supply will exceed demand by some 18% should all proposed developments go ahead. This oversupply would be exacerbated should the proposed development be approved. This would have a negative impact on the functioning of the RHRC as a whole. In his opinion it is essential that attention be given to protecting the early growth stages of the RHRC. Mr Hill notes that 25,000 square metres of bulky goods retailing is planned in Stage 1 of the RHRC and is of the opinion that this is an indicator that such a use will play an important role in the establishment of the economic viability of the RHRC.

6.2.2 The Applicant's evidence 51. Mr Michael Evesson, a town planner with experience in economic assessment provided evidence for the Applicant. In his opinion, the development of the subject site will support the functions proposed within the RHRC. Mr Evesson is of the view that the subject site can be viewed as being an adjunct to the RHRC. This is particularly the case given that the objectives of the 3(b) zone demonstrate that the function of the 3(b) zone is to support the 3(a) zone. As the only 3(a) zone in the vicinity of the subject site is the RHRC, Mr Evesson argues that the subject site must relate directly to the RHRC.

Further, Mr Evesson notes that, while some bulky goods retailing is proposed as part of the RHRC, it is only part of the overall retail, commercial and community functions of the centre. Mr Evesson's evidence was that the bulky goods component will comprise only 6.4% of the floor space (excluding that to be devoted to residential development) of the completed centre. Mr Evesson concludes, on the basis of the assessment undertaken by him, that there will be sufficient expenditure available within the trade area in 2006 to support existing bulky goods floor space, the development on the subject site and 30,000 sq m of bulky goods floor space within the RHRC as well as an additional 16,000 sq m of potentially bulky goods floor space elsewhere in the region.

6.2.3 Findings on economic evidence 53. The economic analyses conducted by Mr Hill and Mr Evesson produce significantly different results. While Mr Hill and Mr Evesson use different modelling techniques to reach their conclusions, their differences arise largely from the inclusion or exclusion of different factors in their modelling. As an example, Mr Hill includes the floor space associated with bulky goods in existing department stores whereas this area is excluded by Mr Evesson. Essentially, Mr Hill believes that Mr Evesson has overstated demand and understated the supply of bulky goods by some 100,000 sq m of proposed/existing bulky goods floor space. Further, Mr Hill argues that developments which are currently proposed to be constructed and which propose to contain bulky goods floor space should also be taken into account in assessing the supply of bulky goods floor space although there is no guarantee that they will be constructed.

The experts' assessments are largely subjective and I am not convinced that the economic analysis undertaken by the experts should determine whether the proposal succeeds or fails. As Mr Hill correctly states in his report, an oversupply of floor space is not a matter that will warrant the refusal of the development application.

In my view, greater significance needs to be placed on the appropriateness of the location of the proposed development and whether this will lead to the fragmentation of the planned role of the RHRC through the creation of a new and isolated bulky goods retailing outlet. Both Mr Hill and Mr Evesson address this issue in their evidence. Mr Hill maintains that the location of the proposed development will have an unacceptable impact on the RHRC whereas Mr Evesson sees the location as providing legitimate support for the RHRC. For the reasons mentioned previously, I agree with the evidence of Mr Hill in this regard.

Bulk, scale, design and height (Issue 2)
The Court was presented with different expert opinions as to whether the proposal is acceptable on the basis of appearance, particularly the bulk, scale, design and height of the building proposed.

7.1 The Council's evidence 57. Mr Apps, the Council's planner, describes the neighbourhood surrounding the subject site as primarily residential in character, although he notes that there are some commercial uses to the south and east of the site. The residential component of the neighbourhood consists of detached dwellings of both single and two-storey construction.

Mr Apps describes the proposed building as a substantial structure between 11.4 m and 13.8 m in height to the top of the parapet and approximately 95 metres wide and 100 metres deep. He notes that it is larger than any existing development in the neighbourhood. Mr Apps' opinion is that the scale and dimensions create a solidly uniform building of substantial bulk that is unsympathetic to nearby adjoining residences. Further, Mr Apps is of the opinion that the proposal is also out of keeping with the existing commercial uses found in the neighbourhood, in terms of bulk and scale.

The bulk, scale, design and height of the proposal was also a matter raised by the residents on the site view and was a consistent issue raised in the numerous submissions provided to the Council when the development application was advertised.

7.2 The Applicant's evidence 60. Mr George, the town planner who gave evidence for the Applicant, describes the appearance of relatively large structures as being normal and expected in and around regional shopping centres. Mr George is of the opinion that the proposal seeks to address aspects of its size through the architectural treatment of the key facade, the setbacks, the sunken nature of the basement car parking, landscaping and fencing. Additionally, he sees the overall height of the proposed building as not being out of scale with the adjoining single dwelling development to the south of the subject site and notes that it is lower than the maximum permissible for the higher density residential zone to the north.

In Mr George's opinion, there is nothing untoward or unexpected about the height, bulk and scale of the proposal. His view is that, given the zoning, the absence of any specific development standards and the reasonable expectation that bulky goods retailing establishments will involve a high probability of relatively large structures, the proposed development must be seen as being acceptable.

7.3 Finding 62. Having had the benefit of the site view and of sighting a plan showing the comparative size of the adjoining residential dwelling in Merriville Road and the nearby residential flat buildings in relation to the proposed building, I agree with the conclusions of Mr Apps that the bulk and scale of the proposal is not appropriate in this location. 63. In considering this issue, the DCP unfortunately provides little or no guidance. It contains no requirements for height, setbacks or floor space ratio and does not give any guidance as to how the interface with the adjoining residential zone ought to be addressed. In this case, the form and size of any development is only limited under the LEP by the amount of parking that can be provided on site.

The absence of specific planning controls should not be seen as providing the opportunity for an unsuitable building form. General planning principles and common sense must therefore be applied to assess any potential impact on the adjoining residential area. A broad power to consider these impacts is found in s 79C(1)(b) of the EP&A Act where consideration is to be given to "the likely impact of that development, including environmental impacts on both the natural and built environments…in the locality".

Even accepting the evidence of Mr George that bulky goods retailing establishments traditionally have building forms similar to that proposed in this application, it does not necessarily follow that this building form is suitable in all locations. It may be that the proposed form could be appropriate in areas surrounded by similar forms of development. In this case, however, it is appropriate to assess how the proposed development relates to the adjoining and nearby residential development and, to a lesser extent, the development on the adjoining commercially zoned land. In my view, the relationship is unacceptable. The attempts made to mitigate the impacts, as outlined by Mr George, do little to reduce the overall bulk, mass and scale of the building. The adjoining residential dwellings in Merriville Road and Clonmore Street will be overpowered by the mass and bulk of the proposed building. While a 10 m setback is proposed along this boundary only 3.5 m of this area is available for landscaping. The relationship between the proposed development and adjoining residential dwellings is not improved by the need to construct a 2 m high acoustic fence on the common boundary. The stark contrast in scale and mass, when viewed from the street, highlights the incompatibility between the two building forms, even considering the different adjoining zonings. The proposed landscaping will not cure this problem.

Similarly, the outlook from the residential properties in Clonmore Street to the northern part of the building fronting Clonmore Street is particularly unattractive, with views of blank walls to a height of some 11.5 m. This is an unnecessary imposition on these dwellings and will have an adverse impact on their amenity.

I am not convinced that any serious attempt has been made to provide a suitable form of interface or relationship between the proposed development and adjoining residential properties. It is not difficult to conclude that the desire to maximise the floor area and to achieve a layout suitable for bulky goods retailing has driven the design. Such an approach should not be taken at the expense of the relationship with development on adjoining properties. Development at zone interfaces was discussed by Bly C in Seaside Property Developments Pty Ltd v Wyong Shire Council [2004] NSWLEC 117, where he emphasised that there is a need to apply common sense planning principles in this context. Any development proposal relating to a zone interface, as exists here, needs to recognise and take into account the form of existing development and/or development likely to occur in an adjoining different zone. For this reason, development may be restricted at zone interfaces.

In my view, the height, bulk and scale of the proposed building creates an unacceptable impact on the adjoining residential area so that it warrants the refusal of the development application for this reason alone.

Public transport (Issue 3)
There was dispute between the experts as to whether the proposed development satisfied the requirements identified in "The Right Place for Business and Services - Planning Policy" for the promotion of public transport. As referred to earlier in this judgment at par 37, Draft SEPP 66 is not in force but the underlying policies it introduces can be taken into account by the Court as consent authority in determining a development application if the Court considers that these are a relevant consideration under s 79C. In this case, I am of the view that these policies are relevant to the determination of this development application.

8.1 The Council's evidence 70. Mr Christopher Hallam, a traffic engineer, provided evidence for the Council. Mr Hallam is of the opinion that the proposed development promotes the inefficient use of public transport and that this alone is a sufficient reason to refuse consent for the proposed development. In his opinion, good land use and transport planning practice is to concentrate major activities in regional centres. This supports the provision of a high frequency public transport service. Mr Hallam's opinion is that the proposal, by offering a location for a large shopping centre which is separate to planned regional centres, does not support efficient public transport services. He notes that the planning for the RHRC has made provision for the in-centre location for uses such as that proposed in this application. For this reason Mr Hallam is of the opinion that the proposed development is inconsistent with Draft SEPP 66.

8.2 The Applicant's evidence 71. Mr Robert Varga, a traffic consultant, provided evidence for the Applicant in relation to this issue. Mr Varga maintains that the subject site is already very well served by public transport, with several bus services currently operating in the area. These are located within a short walking distance of the subject site and will be readily accessible for both customers and staff. In addition, Mr Varga notes that existing public transport services are to be upgraded, with a bus station proposed near the intersection of Windsor Road and Merriville Road, nearly opposite the proposed development. Mr Varga is of the opinion that the fact that the proposed development is located only one bus stop from the RHRC does not diminish the viability of the public transport services.

8.3 Finding 72. I agree with Mr Hallam that this proposal is inconsistent with the policies referred to in Draft SEPP 66. While I accept Mr Varga's evidence that the subject site has good access to public transport and that this will be further improved with the construction of the bus transit ways along Windsor Road, this does not overcome the benefits of co-locating bulky goods establishments within the RHRC. As stated by Mr Hallam in his statement (exhibit 9, p 4), the thrust of the principles incorporated in Draft SEPP 66 provide for the concentration of retail, commercial and other activities in major centres. This: … supports public transport services and thus helps to ensure that there is a public transport choice available to shoppers visitors and workers. Disbursed activities have the opposite effect, watering down the concentration of workers and visitors and hence making it less viable to provide a high frequency and convenient public transport service. 73. In my opinion, the proposed development does not concentrate retail activities in major centres and does not support public transport services.

Consistency with zone objectives (Issue 4)
This issue relates to the potential impact of the proposed development on the existing retail centres within the Blacktown area. The parties' experts differed on the potential impact of the proposed development in relation to this issue.

As set out above, cl 9(3) of the LEP provides that consent shall not be granted unless the consent authority is of the opinion that the development is generally consistent with one or more of the objectives of the plan and of the zone. There was agreement that the proposed development was consistent with one or more of the plan objectives. However, the parties did not agree in relation to whether the proposed development was consistent with the zone objectives.

Further, cl 34(a) of the LEP relevantly provides that consent may only be granted if "the proposed development will not have an adverse impact on the viability of business centres".

Blacktown Development Control Plan 1992 (the DCP) applies to the subject site. The relevant parts of the DCP in relation the proposed development are "Part A - Introduction and General Guidelines" and "Part D- Development in the Business Zones". Clause 2.2 of Part D specifically addresses the 3(b) Special Business zone. Clause 3 of Part D of the DCP addresses the "Hierarchy of Business Centres". The hierarchy nominates four main levels of Business Centre being, in declining order of importance, sub-regional centres, district centres, large neighbourhood centres and small neighbourhood centres. Of the existing and proposed Business Centres within the City of Blacktown, the DCP nominates two sub-regional centres, five districts centres and other centres that serve local retail and commercial needs to varying degrees.

9.1 The Council's evidence 78. Mr Hill states that the proposed development will result in the de-clustering of the existing retail centres within the Blacktown area and will be in direct conflict with the existing retail hierarchy. He is also of the opinion that the proposed development is inconsistent with the existing retail hierarchy as it is inappropriately located and may lead to the fragmentation of the existing hierarchy by creating a new cluster of bulky goods retailing.

9.2 The Applicant's evidence 79. Mr Evesson concludes that the proposal is consistent with the relevant objectives, being objectives (a) and (b) of the zone as set out in the LEP, as it does not consist of floorspace of a type which will compete directly with any established 3(a) centres in the Blacktown area. It is also not out of character with modern bulky goods development.

9.3 Finding 80. Two issues arise for determination under the LEP. (i) Clause 9(3) requires only a finding of consistency with one of the four objectives for the 3(b) zone to allow the proposed development to be considered for approval. Is cl 9(3) satisfied by this proposal? (ii) Clause 34(a) requires a finding that the proposed development will not have an adverse impact on the viability of business centres to allow the proposed development to be considered for approval. Is cl 34(a) satisfied by this proposal?

(i) Consistency with Zone Objectives 81. In relation to cl 9(3) the zone objectives are: (a) to ensure that identified centres are encouraged to grow to a level commensurate with the preferred hierarchy of centres for the City of Blacktown by providing sufficient land to cater for required commercial expansion and ancillary development; (b) to support general retail development of land within Zone 3(a) identified centres by providing land adjoining the centres for the purposes of bulky goods retail establishments; (c) to support general retail and commercial development of land within the Zone 3(a) in identified centres by providing land for additional commercial office development in proximity to those centres; and (d) to support the general retail and commercial development of land within Zone No. 3(a) in identified centres by providing land for uses which service the needs of activities carried on in those centres 82. In order to resolve this question it would be necessary to consider the meaning of "consistency" in this context. That is not a simple matter. It is not necessary that I make a conclusive finding on the application of cl 9(3) given that I intend to refuse this application for other reasons already stated. Even if I did find that the development satisfied cl 9(3) I would still refuse consent for the reasons already stated. (ii) Impact on the Viability of Business Centres 83. In my opinion, the evidence does not support either a finding that the proposed development will impact on the hierarchy of centres or a finding that the proposed development will not support general retail and commercial development within a 3(a) zone in the Blacktown area. The subject site does not adjoin any 3(a) zoned land in the Blacktown area. The isolated nature of the subject site, together with the almost total absence of planning controls (and consequent lack of control on the size of any development) and the permissibility of bulky goods retailing in the 3(b) zone, suggests that the proposed development will not have an adverse impact on the viability of the business centres. Had I been minded to approve this development, which I am not, cl 34 of the LEP would not be a bar to approval. 10. Matters raised by local residents 84. Given my decision to refuse this application it is not necessary to deal further with issues raised by local residents. Orders 85. For the reasons set out above I consider the Applicant's development application should be refused.

The Court orders that:
The Applicant's Class 1 appeal is dismissed.
The exhibits may be returned.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

CITATION : Stadurn Pty Limited v Blacktown City Council [2004] NSWLEC 348 APPLICANT PARTIES : Stadurn Pty Limited RESPONDENT Blacktown City Council FILE NUMBER(S) : 11626 of 2003 CORAM: Pain J KEY ISSUES: Appeal :- Development application for bulky goods outlet centre - Application of Regional Planning Instruments and Draft SEPP 66 - Excessive bulk and scale of building Baulkham Hills Local Environmental Plan 1991 Blacktown Local Environmental Plan 1988, cls 9(3), 34 LEGISLATION CITED: Draft State Environmental Planning Policy No. 66 - Integration of Environmental Planning and Assessment Act 1979, s 79C Land Use and Transport Land and Environment Court Act 1979, s 64 Sydney Regional Environmental Plan No. 19: Rouse Hill Development Area Re Drake v Minister for Immigration and Ethnic Affairs (No.2) (1979) 2 ALD 634 ; Fabcot Pty Ltd v Hawkesbury Shire Council (1997) 93 LGERA 373; CASES CITED: Goldin v Minister for Transport (2002) 121 LGERA 101; Seaside Property Developments Pty Ltd v Wyong Shire Council [2004] NSWLEC 117; Terrace Tower Holdings Pty Ltd v Sutherland Shire Council (No 2) [2002] NSWLEC 150 ; Terrace Tower Holdings Pty Ltd v Sutherland Shire Council (2003) NSWCA 289 24/05/2004 DATES OF HEARING: 25/05/2004 26/05/2004 DATE OF JUDGMENT: 07/02/2004

(2004) 134 LGERA 157

(2002) 121 LGERA 101

At a glance

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Judgment (45 paragraphs)

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Cases Cited (6)

Cited By (4)